ICLR, 2021, Vol. 21, No. 1. ISTANBUL CONVENTION, HONOUR KILLINGS AND TURKEY’S EXPERIENCE
Ulviyya Mammadova MA Candidate, Department of Law, School of Business and Governance, Tallinn University of Technology, Estonia [email protected]
Kristi Joamets Senior lecturer, Department of Law, School of Business and Governance, Tallinn University of Technology, Estonia [email protected] MAMMADOVA, Ulviyya; JOAMETS, Kristi. Istanbul Convention, Honour Killings and Turkey’s Experience. International and Comparative Law Review, 2021, vol. 21, no. 1, pp. 79–99. DOI: 10.2478/iclr-2021-0003.
Summary: The problem of domestic violence against women (DVAW) is a global con- cern and pivotal point which is still waiting for necessary radical measures to prevent it. Honour related violence is a phenomenon and special form of domestic violence against women that affects every country. For decades, honour killings have been a topical legal issue in Turkey. This article highlights the positive changes of Turkey’s legislation after ratification of the Istanbul Convention, which provides legal protection and prevention measures to help women and their families and shows how important it was for Tur- key to implement the Convention in order to prevent these crimes. The authors shed light to the point that Turkey has done much to implement the Istanbul Convention, but male-dominated mentality, still hampers the effective prevention of gender-based violence. Article analyses the importance of the Istanbul Convention in Turkey through the “Unjust Provocation” concept and Law No. 6284 which was adopted by Turkey after ratification of the Convention. Keywords: Honour Killing, Domestic Violence Against Women (DVAW), The Istanbul Convention, Unjust Provocation, Law No. 6284, Violence Against Women.
1 Introduction Honour crimes are one of history’s most terrible forms of gender-based vio- lence across the globe. Honour killings can be concisely described as punishing a woman, mostly by killing her or forcing her into suicide, in the expectation of recovering the ‘family honour’ when the family council decides that she has
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 79 ICLR, 2021, Vol. 21, No. 1. behaved in a way that completely contradicts their moral principles.1 As Gill states “Around the world, women are statistically in the greatest physical danger from men known to them.” 2 This is the case in the honour killing crimes. The distinctive feature of honour killings is the concept of family honour, irrespec- tive of whether the woman is married or single.3 Also age does not matter, girls under 18-year can be victims of honour killing as well. Women can be targeted for murder for a variety of reasons, some of them are : women’s or girls’ marital infidelity and chastity,4 to have an extra-marital relationship, tarnishing the hon- our and dignity of the family, the loss of a woman‘s honour after rape, the wish to divorce or to stop the relationship, an out of wedlock pregnancy, a marriage against the family’s will, to refuse the arranged marriage, a relationship outside of marriage, rumours of dishonourable behaviour, a meeting with friends, mes- sage from lover and etc.5 So-called honour killings are the set of consequences of the patriarchal mechanism and historically disproportionate power relations between women and men.6 While reinforcing and making national laws, advert- ence to women’s vulnerabilities is essential.7 Even though Istanbul Convention8 (art 42(1)) (IC) “demands to establish by the states that culture, religion, traditions or so called ‘honour’ can never be accepted by a court of law to justify the commission of crime”9 the practice shows that several states are very slow to follow this international principle.
1 INCE Onur, HILAL, YARALI Aysun, and ÖZSEL Doğancan. Customary killings in Turkey and Turkish modernization. Middle Eastern Studies, 2009, vol. 45, no .4, pp. 537–551. p. 538 2 GİLL, Aisha K., STRANGE Carolin, and ROBERTS Karl. Honour killing and violence. New York: Palgrave Macmillan, 2014, pp. 1–244. p. 19 3 GÖZTEPE, Ece. Honour killings and the law in Turkey. Crimes Against Women. Nova Sci- ence Publishers, Inc., 2011, pp. 191–199, p. 192 4 KARDAM, Filiz, ALPAR Zeynep, and YÜKSEL İlknur. The dynamics of honor killings in Turkey: Prospects for action. Population Association, 2005, pp. 1–88, p. 17 5 GÖZTEPE, Ece. Honour killings and the law in Turkey. Crimes Against Women. Nova Sci- ence Publishers, Inc., 2011, pp. 191–199, p. 192 6 DE VIDO, Sara. The ratification of the Council of Europe Istanbul Convention by the EU: a step forward in the protection of women from violence in the European legal system. Eur. J. Legal Stud. 9. 2016, pp. 69–102, p. 75 7 SEV’ER, Aysan. In the Name of Fathers: Honour killings and some examples from South- Eastern Turkey. Atlantis: Critical Studies in Gender, Culture & Social Justice, 2005, vol. 30 no. 1, pp. 129–145. p. 138 8 The Council of Europe Convention on Preventing and Combating Violence against Wom- en and Domestic Law, CETS No. 210, 11 May 2011 (entered into force on 1 August 2014). [online] Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 80 ICLR, 2021, Vol. 21, No. 1. In this article authors explore honour-killings in general and its large scale in Turkey, pointing out some distinctive features of honour killings from other forms of the violence against women (VAW). In this empirical research authors try to find the answer to the question how Turkish legislation has been developed by the ratification of IC and whether there are still some gaps and loopholes between the legislation and convention to give sufficient protection for women against honour killing. This research bases on the scientific literature, legal acts and case law as well as international and national reports and contributes for the development of Turkish law in combating violence against women, especially in abolishing honour killing. Article begins with the explanation of the phenomenon of honour killings within the framework of the IC and the positive impact of the IC to the future policies of the signatory countries. The second part examines the concept of “unjust provocation” to show how it has been applied in honour killing cases and what are the consequences by this in the context of protecting women’s life. By the end, authors explore the Law No. 6284 which was adopted after the rati- fication of IC in Turkey and its loopholes. In the conclusion the suggestions are given for Turkish government what to consider when fixing the loopholes and gaps in the implementation of law.
2 Honour killings, human rights, and Istanbul Convention In honour-driven societies, the lower patriarchal power over women, the harder it is to exercise control over them, and consequently, the higher the chance of the practice of violence in order to reaffirm domination.10 In patriar- chal societies, the behaviour of women and girls are under deep and tight con- trol. This type of VAW happens all over the world. There was a great amount of awareness events in the 21st century in order to properly criminalize honour killings, but most of the countries failed in taking the effective steps. Most of the times, these murders were ruled as an accidental issue or a suicide, even though, all the evidence were showing the opposite. The word “honour” is usually used as a justification for murder. As Gill states “the word ‘honour’ carries connotations that encourage perpetrators to view their actions as morally defensible when it is the opposite that should be associated with acts of murder and violence.”11 It is worth analyzing the distinctive characteristics of honour-related crimes from so-called ordinary violence: planning in honour killings is quite common and usually involve several perpetrators, who do not feel remorse, while in ordi-
10 GRZYB, Magdalena A. An explanation of honour-related killings of women in Europe through Bourdieu’s concept of symbolic violence and masculine domination. Current Soci- ology, 2016, vol. 64, no. 7, pp. 1036–1053. p.1044. 11 GİLL, Aisha K., and BRAH Avtar. Interrogating cultural narratives about ‘honour’-based violence. European Journal of Women’s Studies 2014, vol. 21, no. 1, pp. 72–86. p. 73
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 81 ICLR, 2021, Vol. 21, No. 1. nary violence planning is rare and there is usually only one perpetrator who feels remorse directly after the act.12 From the legal point of view, honour killing is a violence against women and violates their human rights. MacKinnon states that “Human rights have not been women’s rights – not in theory or in reality, not legally or socially, not domestically or internationally”.13 Honour killing is a good example to prove that statement, as even today in some countries the honour killings are minimally punished and even legal. Fighting against it is complicated because it has been justified also by the culture, religion or customs. Even though in most states the substantive law bans honour killing then in the practice it has been treated as something not so serious crime. Unfortunately, even the fact that human rights conventions states have associated consist the right to the life it is often explained that, as Doğan states “The dynamic behind honour killing cannot be fully explained without proper consideration of cultural dimensions. In communities where honour kill- ings tend to occur, there is a “culture conflict” or “normative conflict”.14 In Turkey honour killings are quite common problem, and it is impossible to determine how often honour killings take place in this state. The daily papers repeatedly share the information of such killings. Doğan states that “In Turkish communities where honour killings tend to occur, mutual relationships between males and females including marriage are strictly controlled and regulated by institutions and associations in accordance with their cultural norms.”15 In most honour killing cases, a family council, first comes together, and decides the future of the “amoral” that is alleged to have brought dishonour and tarnished the family honour,16 and in many cases the chain of events that ends up with the murder has begun with a simple suspicion or a rumour that a female relative has contravened accepted cultural and moral norms by behaving improperly or being disobedient.17 In principle, honour killing is the most radical solution, usually before com- mitting honour crime an alternative way of solution has been tried to achieve. People do their best to prevent issues of honour to arise.18 Every crime in the
12 GİLL, Aisha K., STRANGE Carolin, and REBERTS Karl. Honour killing and violence. New York: Palgrave-Macmillan, 2014, pp. 1–244. p. 160 13 MACKİNNON, Catharine A. Rape, genocide, and women’s human rights. Harvard Wom- en’s Law Journal, 1994, vol. 17, pp. 5–16, p. 5. 14 DOĞAN, Recep. The dynamics of honor killings and the perpetrators’ experiences. Homi- cide studies, 2016, vol. 20, no.1, 53–79. p. 74 15 DOĞAN, Recep. The profiles of victims, perpetrators, and unfounded beliefs in honor kill- ings in Turkey. Homicide Studies, 2014, vol. 18, no. 4, pp. 389–416, p. 401 16 Ibid. at 401 17 DOĞAN, Recep. The dynamics of honor killings and the perpetrators’ experiences. Homi- cide studies, 2016, vol. 20, no.1, 53–79. p. 60 18 VAN ECK, Clementine. Purified by blood: Honour killings amongst Turks in the Nether- lands. Amsterdam University Press, 2002. pp. 1–303, p. 157.
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 82 ICLR, 2021, Vol. 21, No. 1. name of “honour” makes people to be concerned about the future fate of the women. One of the wide-known case which reached to the European Court of Human Rights (ECtHR) is the Opuz v. Turkey case19 which attracted a widespread public and academic attention to the honour killings issue. In this case Nahide Opuz when attempting to protect herself and her family faced the following questions: If the police are ignoring you when you feel that your life is in danger, you are threatened or maybe even attacked and you call the police and ask for a help and support, what should you do? What will be your next step? Where would you turn for help? In this case Nahide’s ex-husband, was continually beating and threatening her during all their marriage. Once even, he had cruelly knifed Nahide seven times which resulted in her hospitalization and her life was at risk. These series of violence, followed by a failure of local authorities to commence criminal pro- ceedings against Nahide’s ex-husband, was repeated several times.20 The govern- mental authorities released Nahide’s ex-husband after temporarily arresting him, without any investigation of the case and significant actions to protect her and her family. Of course, the police negligence ended up with the brutal murder. He killed Nahide’s mother. He argued that the murder was committed in the name of “honour” and he was released from detention pending appeal, instead of sen- tencing to life imprisonment. In 2002, Opuz filed an application to ECtHR, alleging that the Turkish gov- ernment violated the ECHR 21 by failing to protect her and her mother. The Court made its judgment in 2009, stating that Turkish government failed to protect Nahide and her mother from attacks committed by Nahide’s husband.22 Additionally, in response to the statement of the authorities, that interference of the national authorities would have considered as a breach of the Article 8,23 the 19 Opuz v. Turkey, App. No. 33401/02 (Eur. Ct. H.R. June 9, 2009), [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 83 ICLR, 2021, Vol. 21, No. 1. ECtHR rejected the statement and highlighted the necessity of the intervention of the authorities, in order to prevent the lethal consequences.24 According to McQuigg, “judicial passivity in Turkey created a climate condu- cive to domestic violence.”25 And Sev’er Aysan argues that “States that fail to pro- tect women from violence must be held accountable. If they systematically fail in their responsibility, there should be international investigations and sanctions. Notwithstanding the difficulty of enforcement, the principle is that the states must feel moral, political, legal and economic pressure from the community of nations to protect their own citizens (especially women and children).”26 That is what is missing today in many states, including Turkey: serious international investigations and sanctions in the protection and prevention of domestic vio- lence against women (DVAW). The ECtHR observed that three articles of the ECHR were violated by Turk- ish government in this particular case: Article 2, the right to life; Article 3, the prohibition of torture and inhuman treatment; and Article 14, the prohibition of discrimination.27 With this decision Turkey became the first country, which failed taking the necessary measures and not being able to protect the citizens from domestic violence and prevent it. Under the IC, if the state fails dealing with gender-based domestic violence, it can be considered as a form of discrimi- nation. After this “embarrassing” case, when the IC was introduced for signature in Istanbul in 2011, Turkey became the first signatory and the first country to ratify the convention. Additionally, the IC also served as a benchmark for Law No. 628428 (Law on the Protection of Family and Prevention of Violence Against Women) adopted in 2012 in Turkey. According to The Council of Europe’s report, approximately, over 200 wom- en has been killed in the name of honour each year in Turkey.29 As Küçükalioğlu protection of the rights and freedoms of others. 24 GRANS, Lisa. A right not to be left alone–utilising the right to private life to prevent hon- our-related violence. Nordic Journal of International Law, 2016, vol. 85, no. 3, pp. 169–200. p. 177. 25 MCQUİGG, Ronagh J. A. International human rights law and domestic violence: The effec- tiveness of international human rights law. Taylor & Francis, 2011, pp. 1–176, p. 51 26 SEV’ER, Aysan. In the Name of Fathers: Honour killings and some examples from South- Eastern Turkey. Atlantis: Critical Studies in Gender, Culture & Social Justice, 2005, vol. 30, no.1, pp. 129–145. p. 137. 27 Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2, 3, 14. Nov. 4, 1950,213U.N.T.S.221 [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 84 ICLR, 2021, Vol. 21, No. 1. states “the seriousness of the problem does not only originate from the increas- ing number of women who lost their lives or have been subjected to different forms of violence but most importantly from the “normalization” of violence.”30 It is worth noting that, these murders occur not only in rural cities but in the big and developed cities as Istanbul, Izmir, and Ankara as well.31 However, the over- all situation of honour killings in Turkey has been under international control in order to unroot such issues, in accordance with the obligations of the IC. In most cases, family members are forcing the minor family member to com- mit a crime in order, to get a shorter sentence, because of the age. Sometimes the family members force the women to suicide, in order to avoid legal outcomes. According to Güneş, “honour killing is an extremely popular form of domestic violence and Turkey has failed to effectively prevent honour killings despite tak- ing substantial measures to address this phenomenon.”32 Every state should fulfil the requirements under international law and should require courts to interpret the law properly, otherwise honour killings become a form of state-sanctioned femicide, even if, it is treated as a crime. 33 In the sections of the Turkish law, namely that deal with women in the fam- ily and society, men are shown as having a role of dominance over women. As a result of this legally designated male supremacy, women are legally obliged to preserve their “honour” and killers benefit from reduced sentence or even are not punished at all.34 As UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) does not cover any reference to violence against women or domestic violence,35 the ratification of the IC has been received as a constructive outcome, which fills a regulatory gap existing in Turkey,36 and plays an important role in fighting against honour killing.
30 KÜÇÜKALİOĞLU, Elif Gözdasoglu. Framing gender-based violence in Turkey. Les cahiers du CEDREF. Centre d’enseignement, d’études et de recherches pour les études feminists, 2018, vol. 22, pp. 128–157, p. 130. 31 RUBIN, Clara. Between Traditional Practice and Secular Law: Examining Honor Killings in Modern Turkey. Political Science, 2010, pp. 1–13, p. 9. [online]. Available at: < https:// www.semanticscholar.org/paper/Between-Traditional-Practice-and-Secular-Law%3A- Honor-Rubin/b9fd49ba6bfb9055191cab5c404336713628e972> Accessed: 07.04.2021 32 GÜNEŞ, Ayşe. International Human Rights Law and Crimes Against Women in Turkey: Legislation on So-Called Honour Killings. Routledge, 2020, pp. 1–285, p. 1 33 ARIN, Canan. Femicide in the name of honor in Turkey. Violence against women, 2001, vol. 7, no. 7, pp. 821–825. p. 823. 34 INCE Onur, HILAL, YARALI Aysun, and ÖZSEL Doğancan. Customary killings in Turkey and Turkish modernization. Middle Eastern Studies, 2009, vol. 45, no. 4, pp. 537–551, p. 545. 35 DE VIDO, Sara. The ratification of the Council of Europe Istanbul Convention by the EU: a step forward in the protection of women from violence in the European legal system. Eur. J. Legal Stud., 2016, vol. 9, pp. 69–102. p. 74 36 Ibid. at 75
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 85 ICLR, 2021, Vol. 21, No. 1. The IC has no tolerance policy for a VAW and provides for all signatory states, a wide range of extensive responsibilities for dealing with all forms of such violence, within the legal framework of international human rights in order to make the world a safer and better place to live. The IC is an important agreement for developing and supporting to the international human rights law framework regarding VAW and it reconfirms fundamental rights stated by the first legally binding document on VAW – the Convention of Belem do Para37, also it improves the context provided by the ECHR and the ECtHR and CEDAW. Grans states that “honour-related violence is a complicated and deeply root- ed phenomenon, but it is preventable, even more so than certain other forms of gender-based violence, due to its tendency to generally be preceded by threats of violence and premeditated.”38 She explains that “the IC could have a remarkable impact in terms of driving ratifying States to seek effective ways to assist those many girls and women in Europe who are faced with the threat of violence in the name of honour in their everyday life”39 and that “the IC refers explicitly to honour-related violence only in the context of the prohibition of justifying acts of violence with honour.” She suggests that “it notably needs to be clarified whether under the Convention honour-related violence constitutes domestic violence. Certain provisions apply specifically to domestic violence but do not mention honour-related violence.”40 Also, the IC defines violence extensively and distinguishes the two forms by covering both domestic violence and violence against women.41 It considers domestic violence as a form of violence against women and notes that it affects women disproportionately.42 The important point that girls under the age of 18 years are included in the term ‘women’ is clarified in the Article 3(f) of IC.43 There was a separate requirement of criminalisation of crimes committed in the name of honour, during the drafting process of the Second Draft of IC, but it was removed later.44 Accordingly, honour-related violence does not figure signifi- cantly in the IC text.
37 Organization of American States (OAS), Inter-American Convention on the Preven- tion, Punishment and Eradication of Violence against Women (“Convention of Belem do Para”), 9 June 1994, [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 86 ICLR, 2021, Vol. 21, No. 1. There is an obligation in Article 16(1) of the IC, which relates only to sexual assault, rape and domestic violence, but would be highly beneficial also to the prevention of honour-related violence. This obligation is about support pro- grammes which are targeted to teach perpetrators to accept and adopt non- violent behaviour in social relationships. The positive obligation to guarantee the honour killings in a penal context is contained in Article 42(1) of the IC as “Unacceptable justifications for crimes, including crimes committed in the name of so-called honour”. 45 Here it is clearly mentioned as to guarantee that religion, custom, culture, tradition or honour are not considered as justification for any actions of violence. The human rights approach presents particular way to protect women from abuse and violence but mainstreaming women’s experiences and concerns with- in the framework of human rights still raises many issues.46
3 Unjust Provocation to Honour Killings As Pope states, “Judges are too often ready to accept that a woman “severely provoked” her relatives simply by going out wearing a low-cut dress, by talking at length to a neighbour etc”47 and as an unjust provocation, it can cause a reason for mitigation in VAW cases. Unjust provocation is a reason for a reduction in the penalty that reduces the criminal liability in the event where a person commits a crime under the influ- ence of anger or severe suffering caused by an unjust act.48 There is a decrease in the fault ability of the person who committed a crime under the effect of unfair
lence. Human Rights Law Review, 2018, vol. 18, no. 1, pp. 133–155. p. 138 45 The Council of Europe Convention on Preventing and Combating Violence against Wom- en and Domestic Law, CETS No. 210, 11 May 2011 (entered into force on 1 August 2014). Article 42(1) [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 87 ICLR, 2021, Vol. 21, No. 1. provocation.49 The perpetrator benefits from the penalty reduction since he com- mitted a crime under unjust provocation. Unjust provocation is regulated in the Article 29 of the TCK (Turkish Penal Code)50 and under the TCK, usually the term of ‘custom’ instead of ‘honour’ may result in less serious sentences, generally, custom and honour killers are sentenced to heavy prison terms.51 It allows to consider the perpetrator’s psychological state at the time of the killing, if it is brought into cases where the perpetrator acted out of anger or severity provoked by an unjust act, and if the perpetrator was found to have acted under this influence, obviously, this is the main reason why unjust provo- cation is interpreted by the drafters of the Turkish Penal Code.52 The justifica- tion of Article 29 states that the reduction of sentence is not applicable to cus- tomary killings, but still its justification limits that, this is not the case in all of honour killings.53 And eventually, in some cases, it allows the opportunity of the mitigation defence to be applicable. Nevertheless, the justification of Article 29 also emphasises that this particular article should not be applied to reduce the sentence of a father or brother who kills a woman who was sexually abused.54 These justifications of Article 29 create an equally difficult problem in the application of a crime committed in the name of “custom” or “honour”. The ambiguous wording of Article 82(1)(k)55 narrows the scope of this provision, by including aggravating circumstances of murder and by changing to “killing in
49 Ibid. at 229 50 Turkish Penal Code 2005/5237, [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 88 ICLR, 2021, Vol. 21, No. 1. the name of custom” instead of including “honour”.56 As a response to the gaps in the Turkish law, with the effort of the women’s rights organizations in Turkey the TCK was amended to include two more provisions that are applicable to hon- our crimes. 57 Boon states that “while these amendments are significant steps in the right direction, they do not completely eliminate the possibility of sentence reductions for honour crimes”.58 Some judgements uncover the use of unjust provocation as a mitigating con- dition to reduce sentences. In its remarkable decision the above-mentioned case of Opuz v. Turkey 59 the ECtHR argued the practice of the criminal courts in Turkey. The accused (Nahide’s husband) claims in his murderer defence pro- posals, that he killed his mother-in-law to protect his honour, because she was encouraging his wife to live an immoral life and was taking his children far from him. The Assize Court of the city where the murder was committed, sentenced him to life imprisonment but then mitigated the original sentence, considering the fact that the perpetrator had committed the crime as a result of provoca- tion, and his good conduct during the trial, and finally, the court ordered his release. According to the ECtHR statement, “It was the general practice of the criminal courts in Turkey to mitigate sentences in cases of “honour crimes”. In cases concerning “honour crimes”, the criminal courts imposed a very leni- ent punishment or no punishment at all on the perpetrators of such crimes.”60 Instead of classifying honour killings as a separate category the TPK combined them with customary killings. As Cihan states “the sovereign decision to categorize honour killings within the terms of customary killings in the TCK creates a situation of a juridical excep- tion that sympathizes with and favours those who commit honour killings.”61 Also, he adds that “incorporation of honour killings into the existing categories for murder allows the application of an exceptional measure, the “unjust provo- cation” clause, as a mitigating circumstance.”62 She explains that “consideration of the “unjust provocation” clause undermines the intentionality and malicious- ness of an honour killing and this consideration becomes the basis for lenient
56 BOON, Rebecca E. They Killed Her for Going out with Boys: Honor Killings in Turkey in Light of Turkey’s Accession to the European Union and Lessons for Iraq. Hofstra L. Rev., 2006, vol. 35, no. 2, pp. 815–856, p. 835 57 Ibid. at 835 58 Ibid. 59 Opuz v. Turkey, App. No. 33401/02 (Eur. Ct. H.R. June 9, 2009), [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 89 ICLR, 2021, Vol. 21, No. 1. sentencing. Here, the “unjust provocation” clause is considered as exception and is both a legislative provision as well as a transgression of juridical order.”63 The TCK still contains discriminatory provisions against women and the vague language of it reveals the difficulties of its application because of contra- dictory interpretation of the honour killings and this allows the application of ‘unjust provocation’ as a mitigation to criminals of honour killings. Even though, the amendments to Turkish law show progress in eliminating some discrimina- tory provisions, but this is not enough for having an impact on Turkish society and mentality. As Boon observes “while legal reforms that promote women’s equality and changes to the penal code that eliminate the mitigation defence are a step in the right direction, without a broader grassroots movement that addresses the socioeconomic and institutional factors that contribute to the pervasiveness of the crime and the ability of the perpetrators to avoid legal consequences, this problem will not go away.”64 Although Turkey has taken commendable amendments in legislative and judicial level, they remain on paper and eradicate honour killings or at least sen- tencing process of these cases still depends on the cultural and patriarchal biased decisions of the judge. Most judges in Turkey prefer to offer mild punishments to honour crime perpetrators regardless of those textual amendments, because honour killing never appears in the TPK. The TPK mentions “custom killing,” which judges may separate on a completely technical basis from honour killing.65
4 Legal implications of the Turkish legislation after ratification of the Istanbul Convention As discussed above, after the ratification of the IC, the understandings of judiciary and the law enforcement specialists in the cases of the honour killing have changed in Turkey. Turkey could do more to implement the IC, but the abolition of honour killings seems impossible, because of the male-dominated mentality and the accent on family unity, rather than women as individuals in Turkish legislation. In 2012, Turkey aimed to demonstrate its compatibility with the IC by adopt- ing the Law to Protect Family and Prevent Violence against Women (No. 6284)66
63 Ibid. 64 BOON, Rebecca E. They Killed Her for Going out with Boys: Honor Killings in Turkey in Light of Turkey’s Accession to the European Union and Lessons for Iraq. Hofstra L. Rev. 35 (2006): pp. 815–856, p. 856 65 CORBIN, Bethany A. Between Saviors and Savages: The Effect of Turkey’s Revised Penal Code on the Transformation of Honor Killings into Honor Suicides and Why Commu- nity Discourse Is Necessary for Honor Crime Eradication. Emory Internationl Law Review. Rev,29, 2014, pp.277–325. p. 309. 66 Law to Protect Family and Prevent Violence against Women 2012/6284, [online]. Available
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 90 ICLR, 2021, Vol. 21, No. 1. and revoking Law No. 4320 – Family Protection Law.67 Güneş explains that “the new law aims to provide both prevention and protection measures to help and support women and their families,” 68 “to ensure that these measures taken to protect women from violence provide adoption of inclusive policies to combat (VAW).”69 According to Şener, “this was the first time in Turkey, when in the law’s preparation 242 women’s organizations actively participated and worked on the draft law and talked to the Ministry of Family and Social Policy.”70 Thanks to their participation, one of the main strengths of Law No. 6284 became both – ‘protection of the family’ and ‘prevention of violence against women’ at the same time. There are several strengths of the Law No. 6284, which are worth to highlight. First is the protection of women without regard to their marital status as declared in the context of the IC and CEDAW, eliminating discrimination against women considering their marital status. Additionally, children who are at a risk of being part of the violence or being the witnesses of domestic violence and who can be negatively affected by failing school, behaving violently or even having mental problems71 are benefiting of the Law No. 6284 context, because according to IC, they are accepted as victims of domestic violence. Sarihan states that “Law No. 6284, in line with the IC, has extended the pro- tection scope including both the victims of violence, the people who are in dan- ger of being subject to violence even if they haven’t been subject to violence and all the victims of violence outside the family members.”72 This statement shows us the second interesting and important point of this Law, namely that it includes within the scope of its protection procedures, the victims who are at the risk of violence, while the previous legislation (Law No. 4320), was protecting only vic- tims who already have been subject to violence.
at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 91 ICLR, 2021, Vol. 21, No. 1. The IC points out that “women and girls are exposed to a higher risk of gen- der‐based violence than men.”73 Taking needed and comprehensive measures, in order to protect women at risk of honour killings by their family members and relatives is a compulsory obligation of the signatory states. Accordingly, Ugur questions who will determine the victims who are at risk of violence and how. 74 The Law No. 6284 does not include the principle of ‘clear, adequate, immediate danger’, which is crucial in defining the existence of the risk of violence. And it is considered as a weakness of the Law. But the IC contains these principles in appliance with Article 5075, Article 5176 and Article 52.77 Article 1(2)(a) of Law No. 6284 endorses Article 90 of the Constitution Law, which states that the provisions of international agreements, especially the IC
73 The Council of Europe Convention on Preventing and Combating Violence against Wom- en and Domestic Law, CETS No. 210, 11 May 2011 (entered into force on 1 August 2014). Preamble [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 92 ICLR, 2021, Vol. 21, No. 1. shall surpass Turkish domestic laws in cases where they conflict.78 This article proves the usefulness and the importance of the Istanbul Convention and shows the helpfulness of the provision. Police officials, judges and other governmen- tal authorities have the lack of awareness and knowledge of international agree- ments, and the IC was obliging them to pay more attention to the IC, as it is the legally binding document on combatting VAW. The Law No. 6284 focuses on a human rights approach in combatting VAW. The law provides “a fair, effective and speedy method, which is based on basic human rights, sensitive to the equality of men and women, applicable to the social state principle, is maintained in providing support and services to the victims of violence.”79 Not just the women’s rights framework, but the whole human rights framework will apply. Furthermore, the law applies “the preventive and protective cautionary decisions taken for victims and perpetrators, respect- ing human dignity and honour.”80 It also shows that “taking special measures to prevent violence and protect women from the gender-based violence cannot be interpreted as discrimination.”81 The IC contains definitions for “violence against women”, “domestic vio- lence”, “gender” and “gender-based violence”,82 and the definitions of ‘violence’ and ‘violence against women’ in Law No. 6284 match with the definition of ‘vio- lence against women’ in the IC. The lack of a definition of “gender” in Law No. 6284 is a restriction.83 Additionally, in Law No. 6284, the definition of “gender- based violence” is included in the definition of “violence against women.” Even though Law No. 6284 has created a legal framework for protecting women from violence and preventing VAW, and tries to comply with the IC, there are still gaps within its scope. It still needs the guideline of the IC and the monitoring of the implementations of the Law No. 6284 in Turkey. The problem is not the formation of the new laws, but its implementation of Turkish legisla- tion in the cases of VAW and the lack of political desire to guarantee gender equality. The implementation of the Law No. 6284 and other legislations that pro- tects women against honour killings have its own loopholes and challenges. The
78 Law to Protect Family and Prevent Violence against Women 2012/6284, Article 1 (2) (a), [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 93 ICLR, 2021, Vol. 21, No. 1. implementation of Turkish legislation about VAW has confronted with criti- cism concerning “negative manners towards women, lacking funds and human resources, lack of monitoring and resources, insufficiency of care mechanisms (shelters call centres and etc), comprehensive evaluation measures, connected laws and etc.”84 Article 42 of the IC obliges that ‘culture, custom, religion, tradition or so- called “honour” shall not be regarded as justification for such acts.”85 According- ly, Article 42(1)86 in particular, in the perspective of criminal law, it strengthens the state’s responsibility in Article 12(5)87 of the Convention. There is not a context of crime in the scope of the Law No. 6284. The TCK88 is applicable, but some of its terms are not compatible with the IC. Notwithstand- ing, custom killing is established as an aggravated case, but there is no provision for honour related crimes in the TCK. The cases of honour killings demonstrates that the “unjust provocation” is still applied for these crimes and accordingly, this infringes Article 42 of the IC. One of the indications and major concerns of the unsuccessful implementa- tion and the limited impact of Law No. 6284 is the absence of the official data on women killings in Turkey. According to “We will Stop Femicide Platform’,89 474 women were killed in 2019. These statistics are worrying, especially when considering how Turkish legislation has improved after the ratification of the IC. Additionally, Women’s 84 PALMEN Rachel, FRANCOLI Nuria, GENOVA Angela, GÖKSEL Asuman, SALES Lau- ra, SANSONETTİ Silvia and TOZLU Çiğdem with GÜNGÖR DUYGU and ÖZTÜRK Aslıhan. “WAVE: Violence Against Women Comparative Report: Italy, Spain and Turkey.” TR2010/0135.01-01/339. (2016) [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 94 ICLR, 2021, Vol. 21, No. 1. NGO Centre – KAMER organized a study ‘Who is the Guilty? Family? State? Society? So, All of US?’90 that contains the data of 100 case, 22,684 women in 22 regions in eastern parts of Turkey. This study clearly shows that VAW is still widespread in practice. Women and girls must unconditionally follow the requirements of patriarchal structure, and if they disobey, they face violence, bad treatment, torture, even murder in the name of ‘honour’. After 10 years of being the first country to sign and ratify the landmark Euro- pean treaty (the Istanbul Convention), on 19th of March 2021, Recep Tayyip Erdogan, the President of Turkey has annulled Turkey’s ratification of the Istan- bul Convention. The idea that the country has left the IC, has caused profound indignation and strong condemnation, gathered hundreds of protestants at demonstration against this decision, because 4 out of 10 women in Turkey are exposed to physical or sexual violence at least once in their lives.91 These claims and protests have been strongly supported by a number of feminist NGO’s. Council of Europe Secretary General Marija Pejčinović Burić states that “Turkey has announced withdrawal from the Council of Europe‘s Istanbul Con- vention on violence against women is devastating news. The Istanbul Conven- tion covers 34 European countries and is widely regarded as the gold standard in international efforts to protect women and girls from the violence that they face every day in our societies. This move is a huge setback to these efforts and all the more deplorable because it compromises the protection of women in Turkey, across Europe and beyond.”92
5 Conclusion Unfortunately, VAW is a fundamental problem throughout the world and affects women at least once in their lives. One of the most severe forms of VAW, honour killings started to attract global attention in a world, in the late 1990s. Turkey is one of the countries where violence against women and especially hon- our crimes is soaring more every year. Ratification of the IC was a blooming hope for every woman in Turkey, who are potentially risked for being murdered. Because IC provides an important standpoint for its signatory states representing a modern and comprehensive instrument in combatting against VAW and includes examination of perpetra-
90 KAMER, “Hane Ziyaretleri Verileri 2015 sonuclari / The Report of House Visits in 2015” [online]. Available at:
Published by Palacký University Olomouc, Czech Republic, 2021. ISSN (print): 1213-8770; ISSN (online): 2464-6601 95 ICLR, 2021, Vol. 21, No. 1. tors, prevention of violence, protection of victims and wide-ranging policies. It contributes significantly to the international law by providing more thorough standards on VAW and domestic violence, including honour killings and sup- ports the achievement of considerable equality between the genders and the elimination of discrimination against women in every sphere of life. Turkish legislation before the ratification of the IC has failed protection of women at risk of death, prevention of honour killings, and punishment of offenders of murders committed in the name of honour cases. There are several cases that is proving this statement and one of them was given as an example in this article. After Turkey’s ratification of the IC, Turkish legislation was obliged to pro- vide concrete steps to fight against VAW, particularly preparing the Law No. 6284. Although, Turkey was trying to show the compatibility with the IC, the Law No. 6284 still has loopholes which are waiting to be filled with comprehen- sive provisions thanks to the IC. First of all, Law No. 6284 and the TCK relegate women as a part of the “family” rather than respect them as “individual.” The law enforcement authorities, judges and officers need to focus on wom- en’s equality with men in its considerable form and the patriarchal understand- ing must be eliminated from their mindset for protecting women and their fun- damental rights and freedom. The lack of decisive political will is a main obstacle in abolition of VAW, namely honour killings and in eliminating the discrimina- tion against women in Turkey. The most important part is, that the measures to be taken regarding acts of violence and criminal process to be commenced within the scope of Law No. 6284 should not regard custom and tradition, culture, or so-called ‘honour’ as justifications for these murders. The law should also provide more aggressive measures for recidivists and police. Judges, police and prosecutors must redouble efforts to detect danger- ous situations and take effective measures. In the situations where victims are afraid of reporting abuse, which is quite common in domestic violence cases, this might necessitate specific vigilance. Honour killing remains major challenges for Turkey and it is hard to imagine the growing cases and how hard it will be for women in Turkey to live safely, after withdrawal from the IC. Unexpected decision of Turkey about abandoning the most far-reaching instrument in combatting VAW, the IC, caused series of pro- tests. This unreasonable step means, letting women be killed and perpetrators be punished unproperly. And of course, it is not hard to predict that the withdrawal may move Turkey further away from the EU and membership will become less realistic.
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